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ANALYSIS OF APRIL 26, 2011 CAV OPINION

[Posted April 26, 2011] Venue in a criminal case is one of those tricky details that escape normal criminal-law conventions. For example, while the Commonwealth has to prove venue as a part of its case-in-chief, it doesn’t have to do so beyond a reasonable doubt (because venue isn’t an element of the offense). Today, in Taylor v. Commonwealth, we see what happens when a defendant is convicted of an offense other than the one originally charged.

The original offense was a vehicular larceny, perpetrated one cold January morning when a Colonial Heights commuter started her engine to let it warm up while she finished getting ready to go to work. When she looked out the window a few minutes later, it was gone.

Taylor was connected with the car a few days later in other central Virginia jurisdictions. He was charged with the theft, but at trial, the court granted a motion to strike, since the prosecution couldn’t prove who took the car. The court did agree to allow the case to go to the jury on an unauthorized-use (joyriding) charge. The jury got ‘im, and Taylor appealed.

The question is whether a Colonial Heights jury can convict a guy who was never proved to have a nexus with that city. The court relied on the continuing nature of a larceny charge; but remember, the theft charge was dismissed. Since the Commonwealth can’t prove that Taylor joyrode (is that a proper past-tense?) in Colonial Heights, the case is remanded for reassignment to a proper venue.

Taylor also tried for a complete victory, asserting that the evidence was insufficient to prove that he knew the car was stolen when he used it. But the court finds that that argument is waived. While Taylor urged several grounds in the trial court on a motion to strike, that wasn’t one of them, so it dies a Rule 5A:18 death.